In PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC)  the TCC ordered that both parties should bear their own costs after the date on which the relevant period for acceptance of a Part 36 offer expired and therefore departing from the usual order under CPR36.10(where an offeree is liable to pay the offerer’s costs for the period from the date of expiry of the relevant period to the date of acceptance).

The decision in PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC) shows that there are still very few occasions where the court will hold that a party’s decision to refuse to enter into mediation or some other form of alternative dispute resolution is considered reasonable.

The General Rule and Halsey

The general rule on costs is that the unsuccessful party will be ordered to pay the costs of the successful party but the court has a wide discretion on the issue of costs and will have regard to all the circumstances surrounding a case (CPR44.3) including the conduct of the parties.  Much emphasis is also placed on the efforts made by all parties to a dispute, before or during the proceedings to try and resolve the dispute (CPR44.5(3)(a)(ii)).  

The leading case on whether a mediation should be followed is Halsey v Milton Keynes General NHS Trust [2004] and which provides a useful checklist of when a party is justified in refusing mediation; for example, when the nature of the dispute is not suitable for ADR; whether the cost of ADR is disproportionate to the case; the damaging effect of delay caused by a stay for ADR, especially where a trial date is imminent; whether ADR has a reasonable prospect of success.

Post Halsey

The case of Rolf v De Guerin [2011] EWCA Civ 78 demonstrated that the Court of Appeal can and will exercise its discretion and make no order as to costs when a party unreasonably refuses to participate in settlement negotiations or some other form of ADR.  In Rolf v De GuerinLord Justice Rix spoke of the “sad case about lost opportunities for mediation”  and said that where negotiation and/or mediation would have had a reasonable prospect of success and where a party spurned offers made by the other party to enter into settlement negotiations or mediation, such behaviour is considered  unreasonable and ought to bear materially on the outcome of the court’s discretion in deciding cost. 

A further Hong Kong reported case, Ansar Mohammad v Global Legend Transportation Limited has also shown how refusal to mediate will usually amount to unreasonable behaviour and lead to the refusing party being deprived of much if not entirely all of its costs.

The most recent decision taken in PGF II SA v OMFS Company and another [2012] EWHC 83 (TCC)  shows all parties to litigation that where one party fails to accept another party’s offer to mediate, and where the court generally believes that such a mediation would have had a reasonable prospect of success, such conduct by an obdurate party must be taken into account by the court when it comes to exercise its discretion in relation to costs.    Further, the case also shows that any arguments about why a party refuses to mediate are difficult to sustain unless they are put forward at the relevant time. Any costs sanctions will be imposed from the time a party refuses to mediate, not from when a proposed mediation may have taken place.

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

1. Legal cashiering handling primarily office funds in a regulated environment as part of a team servicing the Fee Earners in MAB.
2. Providing a cashiering and support service to departments of the firm, across multiple offices especially during a migration of Systems.

Main Duties and Accountabilities:

1. Legal cashiering primarily office funds, banking & production of cheques on a daily basis plus covering client and billing cashiering duties in a regulated environment as part of a team. Supporting colleagues during a major system migration.
2. Taking credit/debit card & cash payments from Clients & processing on accounts system once funds received.
3. Processing of automated payments from 3^rd parties into our account & reconciling of statement.
4. Weekly statement run for credit control
5. On a minimum weekly basis to identify and process transfer of disbursements & transfer of costs  from client account, ensuring compliance with the SRA Account Rules
6. To process multi matter/composite bills manually & electronically on line
7. Assisting Billing cashier during peak times of the month
8. Liaising with departments and clients regarding accounting transactions & handling any queries that may arise
9. Weekly Reports to assist with general housekeeping of matters
10. Bank Reconciliations
11. Client related Staff Expenses
12. Posting of Couriers/Co Sec/On line Searches/PCOL invoices as disbursements
13. Financial Write Offs
14. Support & assistance to the team in credit control

Person Specification

Skills and Experience:

1. Previous legal cashiering
2. Strong IT skills

Personal Qualities:

1. Eager to learn and progress, enquiring mind, problem solver
2. Team player
3. Methodical
4. 100% trustworthy
5. Willingness to go the extra mile.
6. Proactive / flexible
7. Excellent telephone manner
8. An appreciation of the fact that this back-office function is critical to the client’s experience of this firm.

To apply for this position please contact Kirsty Floyd, HR Manager at hr@mablaw.com

It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

The article looks at both the Government’s recent announcement that it intends to compel the courts to ensure that each parent is able to see their children regularly (or even equally) following a separation or divorce and the Norgrove report which advised against a presumption of equality for parents.

So who is right?

A spokesman for the Ministry of Justice said “We are committed to reforming the ‘no win no fee’ system so that legal costs for reasonable compensation claims will be more proportionate, and avoidable claims will be deterred from going to court.”

The spokesman went on to say “this will require changes to legal rules and regulations and we want to give sufficient time to get the complex details right.  We are also conscious that legal business will need sufficient time to plan for the changes, alongside other forthcoming regulatory and funding changes to the industry.  We will therefore implement the new measures, subject to parliamentary approval, in April 2013.”

The President of the London Solicitors Litigation Association, Seamus Smyth, has commented that “the Jackson Consultation process took a long time and highlighted a great deal of disagreement.  Implementing his proposals, even as a whole, would have taken time and would not have been easy but tackling them piecemeal was bound to generate more disagreement and take even longer.  Let’s hope the detail and drafting quality of the outcome justifies the wait.”

Earlier in the debate Lord Wallace had told peers that the proposed reforms can “help business and other defendants who have to spend too much time and money in dealing with avoidable litigation – actual or threatened”.

The bill continues its passage through the Lords.

Comment

Tim Constable. Head of the Litigation and Dispute Resolution Department at Matthew Arnold and Baldwin LLP commented: “Many see these aspects of the Jackson reforms as a victory for the insurance lobby.  I do not differ.  I will be interested to see how quickly or enthusiastically a market develops for any new type of funding system given the understandable fear that time and money spent on developing that system will come to nothing in 10 years time when another government decides on another system. Once bitten, twice shy.”

The main issue was whether the Vendors could claim that they had a right of occupation which was an overriding interest within paragraph 2 of Schedule 3 to the Land Registration Act 2002 (“the Act”) binding on the lenders by virtue of s29(2)(a)(ii)? The following issues were considered:

• First of all the Court of Appeal considered the transaction generally.  The correct approach was that there were two transactions, one for the sale of the freehold and one for the leaseback to the Vendors upon completion.  No reference was made in any of the contracts for sale to the grant of a leaseback to the Vendors.  The clear impression created by the contracts was that the Vendors would be selling without reserving any beneficial interest or other rights in the property.  There was nothing to alert the lenders to the possibility that the Vendors expected to remain in possession after completion or that the Purchasers would obtain anything less than the entire legal and beneficial interest in the properties.
• Reference was made to the House of Lords case of Abbey National Building Society v Cann.  Mrs Cann had contributed to the purchase price of a property from money she received on the sale of her previous property.  She was given an assurance by her son that she would always have a roof over her head.  She claimed that she had an equitable interest in the property by virtue of her actual occupation. The House of Lords held that to acquire an overriding interest against a lender by virtue of occupation, the person claiming the interest had to have been in actual occupation at the time of the creation of the legal charge. Where a purchaser relied on a bank or building society loan to complete his purchase, the transaction – that is the transfer of the property and the completion of the mortgage – were one indivisible transaction, and that there was no moment in time (scintilla temporis) during which the property vested free of the mortgage. The House of Lords had held that a purchaser who can only complete the transaction by borrowing money cannot in reality ever be said to have acquired even for a moment of time an interest in land whereby he could grant interests having priority over the mortgage.  Accordingly Mrs Cann took subject to the lender’s charge.
• The Vendors sought to distinguish Cann.  They asserted that Mrs Cann’s beneficial interest arose from the proceeds of sale of her previous house whereas the Vendors in the present case were already in occupation of the properties.  This transaction reflected a change in social and economic conditions created by the fact that people live longer and many have a need to release equity from their property to meet the debts and living expenses to enable them to continue to live in their homes.  The driver of this economic activity was the need or desire of people usually of modest means advancing age and limited legal knowledge and experience to stay in possession of their homes. Lenders could easily protect themselves by making direct enquiry of occupying vendors as to what right they thought they would have on or after completion in relation to the property.
• The Court of Appeal decided that it was not possible to distinguish Cann.  Mrs Cann gave up occupation of her former home in which she had a beneficial interest.  The driver of these transactions was the Vendors’ need or desire to sell the properties.  Without such a sale the charges on the Vendor’s properties would not be discharged.  There was no reason to suppose that the purchase price would not be funded in the usual way by secured loans.  Finally, it would not be appropriate to place on the lenders the risk of carelessness or fraud in the carrying out of the promises or representation made to the Vendors because the lenders could have and should have made direct enquiries to the Vendors.  If persons intend to retain any interest in their property after completion they should make that clear in the contractual and associated documents, the inspection of which will form the basis of the report on title.  There is, therefore, no point in a lender making direct enquires of a vendor as opposed to the other occupier.  It would be difficult to envisage that it would be appropriate or proper for the lender to by-pass the vendor’s solicitors and communicate directly with the vendor.
• The Vendors also argued that between the sale of registered land and the registration of the transfer, the purchaser was by, virtue of the Act, entitled to exercise the owner’s powers in relation to a registered estate including the power to make a lease. A lease of 7 years does not have to be registered.  It followed that the Vendor’s rights under a lease for 7 years or less had priority over the lender’s right under a subsequently registered charge even though the charge was executed before the grant of the lease.
• The Court of Appeal held that any leases of 7 years would have expired and therefore it was hard to see its relevance. In any event, prior to registration of the transfer, the grant of any lease takes effect in equity only and does not fall within the Act at all.  The Court of Appeal did not accept that a lease of 7 years or less granted by the purchaser pending his registration acquired priority even where the lease is granted and the charge is executed within the priority period conferred by the mortgagee’s official search. Prior to registration the purchaser’s interest in the property can only subsist in equity.  As a matter of basic land law, an equitable owner of land cannot grant a legal interest. 

Accordingly the appeals were dismissed and the lenders were entitled to the possession orders the right to obtain vacant possession of the properties.  The Vendors had not acquired any interest which the lenders were subject to and the lender’s charge took priority.  The problem had arisen because the contracts for sale had not given details of the contractual deal.  If this had been clearly stated and recorded then it would have alerted the lenders.  As the Court of Appeal noted, this omission seems, on the face of it, plainly inconsistent with proper conveyancing practice. The Vendors may now consider whether to make an appeal to the Supreme Court.

Denise Cook v Mortgage Business PLC and other related cases [2012] EWCA Civ 17

The Information Tribunal has disagreed with the Information Commissioner’s ruling, and ruled that, if the email still existed, it was still “held” and therefore the University should disclose the email or issue a valid refusal notice.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

The Department for Business, Innovation and Skills (BIS) will fund mediation training for employees from a group of 24 SMEs in each pilot area later this year. A network of trained mediators will be available to provide mediation to other organisations in their respective network.

An open tender to deliver the mediation training for prospective candidates has been published on the Contracts Finder website. The 24 SMEs in each area will be identified and selected later in 2012, once the mediation training contract has been awarded.

It is hoped that the pilot scheme will help to resolve workplace disputes before they escalate and need to be resolved at an employment tribunal.

Since coming to power, the Government has made it clear that it intends to create more opportunities for workplace disputes to be resolved outside the tribunals, and this pilot scheme is a further step in this direction. In November 2011, the Government published its official response to its Resolving Workplace Disputes consultation on reforming the employment tribunal system and announced that it intended to introduce a requirement for all potential tribunal claims to be lodged with Acas, so that parties have the opportunity to resolve their dispute through early conciliation. Click here for more details.

The pilots will run for 12 months and, if successful, the Government may introduce similar schemes in other parts of the country.

Social networking’s popularity has soared in the last few years. The likes of Facebook, Twitter and LinkedIn continue to be among the top 5 most visited sites on the world wide web.

This usage has spilled over into the work place.

How does this affect employers?
Social networking offers employers both a significant opportunity and a new range of risks relating to the activities of its employees. 

Matthew Arnold & Baldwin are holding an event on social networking from an employer’s point of view.

The social networking talk will cover:
• Dealing with employees’ potentially damaging postings on social networking sites;
• The risks and permitted parameters involved in monitoring employees’ internet use;
• “Ownership” of social network client lists;
• The use of social networking sites as a recruitment tool and the legal risks involved; and
• There will be a round up of new legislation

Click here to register.

Agenda:
12.30pm  Arrival, lunch and refreshments
12.55 Introduction- Michael Delaney, Partner
1.00pm  Social Networking Presentation- Bob Fahy, Associate
1.40pm  Employment law update including:
- Government proposals to changes in Tribunal reform and employment law
- Additional Paternity leave
- Bribery Act
Rebecca Fox, Solicitor
1.55pm  Q&A
2.00pm Finish

Venue:                                                                                                          
21 Station Road
Watford
WD17 1H

Click here to register.

From 1 October 2012, and depending on the size of the PAYE scheme, employers will have to enrol eligible employees automatically into a qualifying workplace pension scheme or the National Employment Savings Trust (NEST). Employers will also have to make mandatory contributions.

Under the scheme, employers will be given a “staging date” from which they must auto-enrol eligible employees if they are using a defined-contribution scheme or NEST as their qualifying workplace pension scheme.

On 25 January 2012, the Government published a revised auto-enrolment staging timetable. Click here to see the new timetable. The publication of the new timetable follows the Government’s announcement in November 2011 that small businesses with fewer than 50 employees would begin auto-enrolment in May 2015, instead of April 2014. (Click here for further details.) Under the revised timetable, there will be no change to the staging dates of employers with 250 or more employees. All existing businesses will have enrolled their staff by April 2017, followed by all new employers by February 2018.

The Pensions Regulator has published some useful information on auto-enrolment on its website. Click here.

If you have any concerns about how auto-enrolment will affect your business, please contact me at michael.delaney@mablaw.com.

The Court of Appeal reversed the decision of the PCC on the grounds that the PCC had made two errors in light of the prior art:

1. The PCC had failed to identify the correct differences between the prior art and the claims made.
2. The PCC had failed to address whether the differences between the prior art and the claims made amounted to steps that would have been obvious to a person skilled in the art without any knowledge of the alleged invention, or whether those steps required a degree of invention.

The Government’s actions are intended to take effect later this year, and will implement the Consumer Rights Directive, which was approved by the European Union in October last year.

MM issued proceedings for infringement of copyright, alleging that the BBC had used his original artistic work in the “Bounce Bunch”, which he had provided to the BBC, in producing “Kerwhizz”, and that the characters were so similar that they could only have been created by the BBC by copying his own characters. MM showed that there were extensive similarities and that the BBC had prior access to his work (which had been available online even before he submitted it to the BBC), such that the Patents County Court passed the burden of proof on to the BBC to show that the characters in “Kerwhizz” did not come about through copying.

The Patents County Court ruled that there had not been any copyright infringement, on the grounds that the BBC’s evidence clearly showed that the “Kerwhizz” creations did not come about through copying the “Bounce Bunch” characters. There was no causal connection between the two. Rather, the Patents County Court found that the BBC witnesses had shown on the evidence that they had already provided the Kerwhizz characters prior to the communication from MM. In any event, “Bounce Bunch” designs were simple, generic and not particularly memorable, such that, even if a BBC designer saw the designs, subconscious copying of those designs was extremely unlikely.

One high-profile change to the industry is the patent cliff (the sudden falling off of many patents that will stifle big pharma’s revenues that they can use to invest in R&D in new drugs).  But there are many more challenges and changes.  It is hard to over-state the social and technological changes in the environment, and like any evolution the result will be a different-looking industry to what we are faced with today.  Industry players will have to change to meet the challenges and opportunities arising out of the different environment, some new players may emerge and and some may cease to exist.  But ignoring the changes could lead to current industry players ending up the same way as the dinosaurs.

Professor Smith combined research, clear intelligence and thought with a very practical and down-to-earth analysis, coming from years of experience of working in the industry.

It was also a great event to run with the Watford Chamber of Commerce.  With its excellent transport links and commitment to moving to the future with the £1.5bn Health Campus within the town, Watford and its surrounding areas are blessed with a significant number of businesses in the pharma sector. 

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at MAB, comments: “We were delighted to have someone of the calibre of Professor Smith speak. He is a recognised leader in his field.  There was a lively Q&A session afterwards. It was also great to see the amount of excellent networking that took place.  Many of our clients and contacts made new connections on the day and the feedback received from the 100 attendees was generally excellent. 

“Our motto in the Pharmaceuticals and Life Sciences Sector group at MAB is “Bringing excellence to life, together”.  From the success of yesterday’s event, we hope we have lived up to that.”

 The trial concerned a man who had been accused of grievous bodily harm with intent and the internet research carried out by Dr Dallas revealed that the man who stood accused, had previously been accused and acquitted of rape (the man has subsequently been retried, convicted and jailed).

 Ms Dallas has been given a sixth month prison sentence and been told that she will have to serve at least 3 months in jail before being released on licence.  She was refused permission to appeal to the Supreme Court as it was held that she had “deliberately disobeyed” the trial judge’s express instructions not to research the internet.  The trial judge said that the internet research had caused great damage to the administration of justice and had greatly prejudiced the jury.   She had also caused unnecessary public expense and wasted the time of other members of the jury.

Recent cases

The jailing of Ms Dallas comes on the heels of a young Manchester juror who in December 2011, pretended he was sick and lied to court officials at Manchester Crown Court where he was undertaking jury service  so that he could attend a west end musical in London. In this instance, the judge ordered the juror to serve a 14 day sentence at a Young Offenders’ Institution saying that the juror has lied frivolously to court officials.

Back in June 2011, a juror was sentenced to 8 months in prison for contempt of court for having contacted a defendant via the social networking site Facebook and causing the collapse of a £6m drugs trial. 

Comment

It is clear from the jailing of Ms Dallas for contempt of court and the other cases highlighted above, that the UK judiciary is sending out a clear message to all serving and potential jurors who may be tempted to use the internet and social media sites to the detriment of a trial for which they are sitting on the jury.

Jurors are sworn in and must take an oath or make an affirmation of a promise to listen to the case carefully and to give a fair verdict.  If this oath is disobeyed, a juror will be held in contempt of court.

However, with access to the internet at the click of a phone, laptop or ipad, the cases above illustrate how difficult it may be to prevent those serving on a jury from accessing the internet and undertaking research, or using social networking sites to provide commentary about a trial during the trial itself (see Contempt of Court Act 1981).

The integrity of our judicial process must be preserved but, faced with the onslaught of modern technology/communication, this may be increasingly hard for the judiciary.

 For further information see also:

http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Goingtocourt/DG_072707  and

http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-16676871

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This shows an interesting strategy in its fight to stamp out bribery. Despite the bribes having taken place in another country, this still fell within the SFO’s remit. Innocent people should still do their due diligence on the foreign businesses in which they invest, and they should try to make sure that the business is conducted properly. Otherwise, they can face clawback for dividends paid out to them despite not being at fault or having any knowledge of the issue.”

How the plans will work in practice is unclear, especially given that the Government’s plans involve handing down more power for control of budgets locally, as the medical practitioner has been held out as having better expertise to decide what to spend the medical budget on.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “Something that may soon alleviate the unfairness of the postcode lottery is the Patent Cliff – under which many blockbusting drugs are about to come off patent and be open to competition by much cheaper generic equivalents. Lipitor, for example, has already recently come off patent.”

In November 2011, the transport Minister Norman Baker launched the ‘Anywhere Working’ consortium, with its purpose being to enable employers to understand the benefits of flexible working. The consortium aims to help organisations achieve greater productivity, reduce employee stress and absenteeism, and reduce carbon emissions generated by business travel.

The Anywhere Working consortium is backed by big businesses (including Business in the Community, Microsoft, Nokia, Nuffield, Vodafone and Regus) and The Trades Union Congress.

On 16 January 2012, the consortium set up a new portal (click here) which contains a number of resources for employers and employees, including training, guidance, case studies and product offers. Organisations can also use the portal’s Savings Calculator to measure how much time, money and carbon energy they can save by working more flexibly.

The consortium is holding an ‘Anywhere Working Week’, beginning on 27 February 2012, and will provide additional guidance to organisations to help them learn more about flexible working and how it can benefit them and their workforce.

The EU Parental Leave Directive, which comes into force on 8 March 2012, increases the minimum parental leave provision from three to four months. Although member states should implement the Directive by 8 March 2012, member states can take an extra year for implementation if required.

BIS has said that it will utilise the additional year’s grace and will implement the changes in March 2013.

To find out what is changing in employment law in 2012, please click here.

Despite the exact photos being different, the judge ruled that New English Teas’ subsequent photo had infringed what he called the copyright in Temple Island’s “photographic work”. He described this as being the precise motif, the angle of shot, the light and shade, illumination and adaptation by digital manipulation after the event. It was more than being in the right place at the right time, as thought and effort had gone into creating the exact combination of features in a certain way which had made the photo look attractive. Whether it is copied in each case is a matter of fact, but in this case the judge decided that there was sufficient similarity. Although he said he struggled with the decision, he dismissed the argument that the ruling would give one person exclusivity over certain landmarks – it all came down to the way they were represented in a particular aesthetic way.

When the government announced this change in October 2011, it did not confirm whether it would affect existing employees (who may already have qualified for unfair dismissal rights) or just new joiners.

The Department for Business, Innovation and Skills (BIS) has now confirmed that the regulations that will implement the change will, subject to Parliamentary approval, state that the new two-year qualifying period will only apply to employees whose employment begins on or after 6 April 2012. Employees who are already in employment before that date will retain the current one-year qualifying period.

The Government estimates that the change will save businesses £6m per year, with a reduction of 2,000 unfair dismissal claims per year.

For further details of other employment law changes taking place in 2012, please click here.

“…we are instructed to put forward the following offer, this offer is made pursuant to Part 36 of the CPR and remains open for acceptance for a period of 21 days, from your receipt of this offer letter, thereafter it can only be accepted if we agree the liability for costs or the Court gives permission..”

The court in this matter analysed some of the very many cases on Part 36.  In particular they drew attention to the Gibbon authority where the court held that:

• Part 36 is a self-contained code.  Parties are not bound to make use of the mechanism provided by Part 36, but if they wish to take advantage of the particular consequences for costs and other matters that flow from making a Part 36 offer, in relation to which the court’s discretion is much more confined, they must follow its requirements.
• Although basic concepts of offer and acceptance clearly underpin Part 36, it did not follow that Part 36 should be understood as incorporating all the rules of law governing the formation of contracts, some of which are very technical.
• As such the rejection of an offer did not make it incapable of subsequent acceptance.  Part 36 allows a defendant or a claimant to decide whether to leave an offer open for acceptance or to withdraw it and make another offer later.

In the case of C v D, the court were concerned with a letter where the offer was open for 21 days from the date of that letter and the question was whether the offer lapsed after 21 days.  In that case the court decided that:

• If a claimant wishes to make a time limited offer, in the sense that the offer is to lapse of its own accord at the end of a stipulated period, then such an offer cannot be a Part 36 offer.
• An offer presented as a Part 36 offer and otherwise complying with its form will not readily be interpreted in a way which would prevent it from being a Part 36 offer.
• If an offeror wishes to bring his Part 36 offer to an end, so that it cannot be accepted then he must serve a formal notice of withdrawal.
• A time limited offer does not comply with Part 36 and so when interpreting such an offer, it should be approached on the basis that the party making the offer and the party receiving it, appreciated that fact.

In the Huntley case, which was a claim for personal injuries, the offer was defective because it did not state the added requirement for personal injuries that any damages would take the form of periodical payments.  The court held that it did not comply with Part 36, but awarded the same consequences under Part 44.3.4 (c) instead.

In Carillon the offer contained no time limits, but invited the offeree to respond within the next 7 days.  The failure to spell out a 21 day period was an important omission because the time limits within Part 36 provide a time-table and also point out to the offeree the cost consequences of not complying.

In Shah the offer was open for acceptance for 21 days after receipt of the letter.  Following C v D the Judge held that this did not prevent it from being a Part 36 offer, but since the letter offered predictive costs in line with the Road Traffic regime which were less generous than the costs which he would have been entitled under Part 36, the Judge held that it was not a Part 36 offer.

On the facts of this case, the court considered two questions concerning the offer letter:

• Whether it failed to comply with Part 36 (2) (b) because it did not on its face that it was intended to have the consequences of Part 36.
• Whether it was inconsistent with Part 36 because after 21 days it can only be accepted “if we agree the liability for costs or the court gives permission”.

Although the letter referred to Part 36 in two places including one in bold type, the court did not accept that it was a Part 36 offer because the provisions of Part 36. 2 state that if an offer is intended to have the costs consequences of Part 36 it must state on its face that it was intended to have the consequence of Part 36, which it did not do so. In addition, it was not clear that the claimant intended the letter to have the consequences of the new Part 36 as the offer was inconsistent with Part 36 and further the letter did not refer to all the consequences of Part 36.

Having decided that the offer letter was not compliant with Part 36.2 it was not strictly necessary to consider the second issue, but having heard arguments, the Judge decided that the offer did not remain open for acceptance after 21 days unless one of the conditions in specified were satisfied and therefore as a matter of construction the offer was not open for acceptance after 21 days and therefore was not a Part 36 offer.

It seems that the claimant intended to rely on Part 36, but because Part 36 was not followed strictly, the offer was held not to be compliant.  This is another case which demonstrates how careful you must be when preparing Part 36 offers and how by breaching a technicality despite  sometimes the very best of intentions a court may decide that the offer is not compliant. Part 36 featured as part of Lord Jackson’s review and led to a further CPR amendment to make it clear that in relation to any money claim or money element of a claim, when considering whether a judgment obtained is ‘more advantageous’ or ‘at least as advantageous’ this means better in money terms by any amount, however small. The other issue relating to Part 36 which is to be considered is where a defendant rejects a claimant’s offer, but fails to do better at trial, whether the claimant’s recovery should be enhanced by 10%. This could be the subject of further consultation. Clearly we have not reached the end of considering the impact of Part 36.

Norma Lee Thewlis v Groupama Insurance Company Limited [2012] EWCH 3 (TCC)

The Government is asking for opinions on regulations that affect the private rented sector, social housing, construction, and the building regulations. Full details are here.

In the Government’s press release on the issue, Communities Minister Baroness Hanham said:

“For years builders, businesses, landlords and residents have had to navigate an increasingly complicated set of rules and regulations to do things by the book. Now we’re giving them the chance to tell us what they would like us to change so that building a new home or property is a smoother ride.”

Interested parties have four more weeks to put forward their views and this can be done on the Red tape challenge website. This website has full details of the challenge and you can also read the opinions of those who have already commented (and respond to those comments if you so wish.)

Many of these volunteers will be employees, so, in order to minimise the impact their absence may have on workplace productivity, Acas has advised employers to start talking to them now so suitable arrangements can be made.

To help employers, Acas has issued new guidance on employers’ legal obligations to employees who wish to fulfil their volunteering commitments. This provides advice on the following key questions which will inevitably arise during discussions between an employer and employee:

1. Three of my staff have got volunteer positions at the Olympics. I can only let one go. What’s the best way of handling this?

2. I have a member of staff who has got a volunteer place at the Olympics. Do they need to use their own holiday?

3. I have a member of staff who has got a volunteer place at the Olympics. Am I expected to pay for them while they volunteer?

To read this guidance (and answers to the above questions), please click here.

One opportunity has been seized by big Pharma company, Bristol-Myers Squibb, through its recent acquisition of Inhibitex, a biopharmaceutical company, at a cost of US$2.5 billion. Inhibitex is currently developing a promising new hepatitis C drug, which though currently only in Phase II development has shown great potential. With over 150 million people worldwide suffering from hepatitis C and over 75% of liver disease being attributed to the illness, producing an effective drug to combat or manage the disease is foremost in the mind of the Pharma industry today; and Bristol-Myers Squibb is not alone. Only last November, Gilead Sciences, Inc agreed to pay US$11 billion for Pharmasset, Inc, another company refocusing on the development of further hepatitis C treatments and with Merck, Vertex and Johnson & Johnson also rumoured to be targeting the hepatitis C market, we can see that big Pharma are on the hunt.

Laura Mole, a member of MAB’s Pharmaceutical and Life Sciences Sector team says, “This latest acquisition by Bristol-Myers Squibb is living proof that the industry is changing and big Pharma are almost panic buying in order to build and diversify their portfolios. This is shown by the acquisition of not only market ready products but also drugs still in the development stages. It is clear that with the Patent Cliff threatening, and with Bristol-Myers Squibb itself to fall victim with its soon-to-expire patent protection on blockbuster drug Plavix, any opportunity to grow and protect will be taken. Small/mid sized Pharma had better be ready for the bidding war to come.”

In AstraZeneca’s case, it has established the Science and Technology Integration Office, which will develop collaborative projects with other businesses, universities, governments and charities. AstraZeneca is continuing with its quest to find “the next big thing” with innovation but through cheaper means – effectively building its links with outside providers of research and development.  Meanwhile, some others in the industry such as GSK, the UK’s biggest pharma company, are looking to mitigate against the dangers by diversifying their operations.

AstraZeneca has already signed a deal last month with the Medical Research Council, under which academics can investigate the use of 22 of AstraZeneca’s clinical compounds in treating diseases. AstraZeneca has also recently entered into an agreement with IMS Health, to use IMS Health’s data to assess how well its drugs respond to patients, so as to be able to prove their value-for-money and usefulness to the customers.

The loss of patents comes against a backdrop of attacks on the prices paid by public health systems for drugs in the face of the debt crisis. With harder regulatory burdens to get any new drugs to pass clinical trials and fewer blockbuster possibilities, pharma companies are affected whichever way you turn.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, predicts: “The combined effects of the patent cliff and other factors are going to force the pharma industry into change.  Things cannot continue to go on the way they are currently doing. It is of great concern that this survey shows that most people think that the industry is not adapting fast enough to the external factors affecting it. If the industry does not change quicker, this will have catastrophic effects on the companies that invest in developing and producing the new drugs that improve people’s health.”

On 19 June 2007, Amex issued a Default Notice asserting a breach of the agreement requiring remedial action in accordance with section 87(1) of the Consumer Credit Act 1974 (“the Act”).  Mr Brandon did not make the minimum payment and so on 11 July 2007, Amex sent Mr Brandon a Notice of Cancellation.

Amex then issued proceedings and Amex applied for summary judgment.  For Amex to succeed, Mr Brandon must have no real prospect of successfully defending the claim or issue in accordance with CPR Part 24.2(a)(ii).

Before the District Judge, Mr Brandon argued that the default notice required payment within 14 calendar days from the date of this Default Notice, but no allowance was made for the fact that he would not receive this notice on the same day and so he was given less than 14 days before the agreement was cancelled.  Applying the usual Civil Procedure Rules on service the District Judge gave summary judgment for Amex regarding the default as de minimis (minimal) and something he was prepared to overlook. Subsequently, on appeal, the Judge held that as no enforcement action was taken within the 14 days, the argument was not relevant because Mr Brandon had not suffered “any prejudice at all by virtue of that technical breach…” At the appeal stage, Amex also sought to rely on the contractual agreement which entitled Amex to terminate as an alternative to the Default Notice.  The Judge considered that this argument had not “simply been sprung” on Mr Brandon as it had been flagged previously.

The Court of Appeal noted that Mr Brandon’s stance was devoid of merit, but it could not conclude that there was no real prospect of a successful defence.

• On the first issue of the validity of the Default Notice the court was of the view that Amex was not entitled to summary judgment.  Mr Brandon’s defence could not be dismissed “as being unreal”.
• As a matter of construction, the Court of Appeal could not accept that the 14 day period ran from service of the Default Notice as opposed to the date of the Default Notice. It could not be presumed that the Default Notice would have been served less than two days after being posted.
• As a matter of construction, the Default Notice had not or may not have allowed the minimum statutory period for Mr Brandon to remedy the breach and so the defect could not be overlooked as de minimis.
• As regards the arguments on contractual termination, the Court of Appeal considered whether it could rely on a clause in the agreement and proceed on the basis of non-default termination.  The court was in broad agreement that sections 76 and 98 did not apply to this agreement.  However, there had been no mention of this before the District Judge and the point was only mentioned in the skeleton argument before the Judge.  The Court of Appeal considered that this was too significant a change of case and therefore it would not be fair to permit summary judgment on the basis of contractual determination without proper arguments.

Accordingly, Amex was not entitled to summary judgment and this matter would proceed to trial.  As the Court of Appeal noted “regardless of the outcome of the appeal, Mr Brandon is a bad credit risk; for this conclusion, he has only himself to blame.”

Ian Karl Robert Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at Partner at Matthew Arnold & Baldwin LLP and a data protection law specialist, comments: “We need to understand the facts as the ICO sees them and then make a judgement, but such a large fine seems harsh given that the hospital appear to have been the victim and no data actually got into the public domain through the hospital’s action with the police when the items appeared on eBay. This action signals the tough intentions of the UK’s data protection regulator in dealing with data security breaches involving people’s health data.”

The look and feel of an App is created not just by the content, but also by the functionality and the functioning of the App in the hands of the public. 

Pop ups and words, direct connect to stream video links, cross-referencing and other mechanisms all add to the overall effect and impact of the App, which, so far as the public is concerned, is what really matters.

A recent case in which the Advocate General has given his opinion in the same vein as the English Courts will both make protection of functionality more difficult and in some ways the position easier for App designers.

Essentially the Advocate General in the case of SAS v WPL has said that the language and functionalities of a computer programmer are not eligible for copyright protection.  This follows on from previous English law cases such as Nova v Mazooma.

So how can you protect the look and feel of an App?  Clearly the content will be subject to copyright and possibly, if the design is very similar, there may be a degree of passing off.  The fact is, with functionality, if what you are doing is not patentable, there may be very little you can do to protect your wizzy idea. You can try and make sure that the person for who you design the App doesn’t get any rights to whatever it is you have done, but the App designers are still going to have to be quite careful to make sure that nothing they want to replicate in other Apps by way of functionality is accidentally handed over to a single client, as otherwise things are difficult. 

In fact this problem extends across into all kinds of spheres. The problem is that these days by contacting the right website somewhere in Asia, you can get a source code written for practically any functionality if you can identify exactly what is the functionality you want.  Very often identifying that functionality and the way in which things work must be analysed is the true value of a company.

Let’s give an example. Let us suppose that we have a company that has made a breakthrough in, say, a voiceover internet protocol using mobiles. It’s just spent 4 years and a lot of shareholders’ money developing a pass through to where it knows how everything works, has to work and works in the way in which the public wants. Some senior members of staff then rip it off by taking the analysis of functionality and asking somebody else to write a source code to replicate that. The answer in that case is not breach of the law of copyright nor infringement of patent,  but the good old fashioned law of confidence based on the employment relationships involved.

And that brings me to how App designers and producers and those dealing in discussing with them need to protect ideas. Although probably the best we can do to help you is to ensure that what you do talk about is subject to the law of confidence and the confidentiality provisions in your contacts and standard form agreements rely on the protection to the registered credentials.

In the meantime, with so many companies’ assets really held in the form of knowledge and know-how, the legal and business communities should really be looking at how existing structures or new structures can be adapted to give greater protection in the digital environment.

The Commission has for some time been looking at trying to encourage further uses for the concept of e-money, so as to improve the development of inter alia the internet based economy.  Its answers to questions, however, (there was another one back on the 25 November) have an arcane ring to them and the one that prompted this note is positively opaque. I wouldn’t say that the answers to these questions are actually making it any easier for people to get into the business.

Today’s question and answer relate to NFC stickers. This is not, as some might imagine, some form of promotional advice to do with American football; it is to do with Near Field Communication and is basically RFID combined with authorisation procedures relating to e-money and its use.

The situation set up by the question is a very basic one – a payer with a device that has an NFC sticker on it goes into a shop and the shop reads the sticker, contacts the person with whom the shopper has made a deposit, accesses the necessary credit balance, authorises as if it were a payment to itself and hands over the goods. Payment comes from a central “fund” rather than a single payer’s designated account, but in a sense mimics the way in which electronic money issuances have been going on in Europe for some considerable time. That is to say, in the early days electronic money was issued usually by authorising a central fund owned by the issuer to make a payment following a payment in by the user. 

The answer as to whether or not this constitutes the issue of electronic money given by the Commission is simply to say: read the rules and come to your own conclusions. This is because the rules are designed to be flexible and not stifle technological development, whilst at the same time leaving a degree of latitude for interpretation of the rules at a country by country level. 

The second part of the question was when would this kind of transaction not be caught by the Electronic Money Issuance Rules. Here the Commission, in a roundabout way, gives a more straightforward answer. 

It basically quotes the well known exceptions to the need for e-money issuance in relation to, for example, communications operators to do what looks like e-money issuance for provision of services by themselves. Using powers of deduction, however, the answer to the second part of the question is you can deduce that the Commission thinks that it is probably more likely than not the exceptions have to apply to exempt the service and, therefore, the transaction is prima facie caught by the Rules.  A problem for those developing e-services, perhaps using newish technology, is the ease with which one can be caught by the e-money regime and then left struggling in the UK to use the small e-money issuer “get out of gaol card”. 

The fact is, however, that the European authorities are very nervous about the public being ripped off or scanned by what looks like e-money issuance schemes, and at the moment that fear drives them to be relatively conservative. 

What that should drive is the innovation in this area by those who don’t otherwise need further authorisation (such as the banks and those who are in charge and truly in charge of the technology, i.e. the mobile network operators.) Both these institutions probably have other things on their mind at the moment, but it does seem that they are being given a substantial opportunity, particularly in the case of banks who can continue to develop further services so they can remain the leading financial payment mechanism providers.

What I doubt will happen is that they will be left alone forever and they are frankly going to have to start demonstrating innovations in this area or risk the Commission making it easier for others to become e-money service operators in this area.

The background to the proposed Common European Sales Law (“CESL”) is that the CESL would be an optional law designed to sit alongside a Member State’s already existing domestic contract law.  The CESL would be used by parties to govern cross-border transactions where at least one of the parties is based in the EU and where both parties have expressly agreed to its application.  The CESL could be used where contracts exist for the sale of goods between businesses and consumers and also for transactions as between businesses where at least one of the parties is a small or medium enterprise (or “SME”).  I thought I would provide a quick update in relation to the proposals.

Current UK position

 In December 2011, the House of Commons submitted a formal response to the European Parliament Council in which it said that the House of Commons does not consider that the EU proposal to introduce a CESL complies with the principles of subsidiarity and proportionality (see below) in accordance with EU Treaty law and therefore challenges the EU Parliament’s validity of such proposals. 

The House of Commons said that not enough detailed information had been provided by the Commission in relation to procedural requirements and that the European Commission had also failed to provide a detailed analysis as to why a CESL needs to be established.  In putting forward its proposals, the House of Commons said that it had taken on board the concerns that had been expressed by various UK based organisations about the effect that the CESL would have on business/consumer contracts.

Subsidiarity and proportionality

The Treaty on European Union (the “TEU”) states that all institutions of the Union shall apply the principles of proportionality and subsidiarity as laid down in the Protocol.

In the context of European law, “subsidiarity” is the principle that action at EU level should be undertaken only where the objectives cannot be delivered by action at local, national or regional level (as defined in Article 5(3) in the Treaty on European Union).

The principle of proportionality is that “the content and form of European Union action shall not exceed what is necessary to achieve the objective of the Treaties (Article 5(4), treaty on European Union). 

Concerns

Many UK organisations have expressed concerns that the establishment of the CESL would add confusion and legal complexity to business/consumer contracts.  There may be added legal uncertainty if it is the case that each Member State could apply its own, different interpretation of the CESL. Further, there is a real risk that the CESL could replace national consumer laws. If there is a choice of applicable law, confusion is enhanced as there is always the possibility that the CESL might offer less protection than the domestic laws of that particular Member State.   Currently, it is felt by UK enterprise that the lack of a common sales code does not prohibit consumers or businesses from engaging in cross border trade to any great extent.

The House of Commons is determined that the implementation of the CESL should not be rushed.  It remains to be seen how other member states react to the CESL proposal.   Of particular interest are the statistics provided in the EU’s own Flash Eurobarometer survey (no 300) dated March 2011 where nearly 80% traders surveyed across all  27 EU Member States said that harmonised consumer law in the EU would make “little or no difference to their cross-border trade”.  However, the same survey also found that retailers appeared to be more open to sell their products or services in other EU countries if regulations were harmonised.

It was envisaged by the European Commission that the CESL would be implemented by the end of 2012. Watch this space for updates……

The purpose of the loan was to provide the claimant solicitor with funds to enable him to pay disbursements including the premiums due under after-the-event (ATE) insurance in respect of up to 6,000 claims in which he proposed to act , pursuant to conditional fee arrangements (“CFAs”) for debtors under regulated consumer credit agreements against banks and other financial institutions.

The issue which the court had to consider was whether the defendant was entitled to decline to make the first advance under the loan agreement when requested to do so:

Was the defendant entitled to decline to make the advance in the exercise of discretion under clause 1.1 (a) of the agreement?

• Was the defendant entitled to decline to make the advance on the ground of non-satisfaction of the conditions precedent in clause 1.7?

Clause 1.1 (a) provided that the “Lender’s obligation to make any Advance hereunder shall be in the Lender’s sole discretion.” The Judgment provided a very detailed discussion on the meaning of this clause.  Taken by itself the court decided that the clause is unclear when closely analysed.  However, on closer inspection the Judge considered it to mean that it is up to the lender whether or not to make an advance rather than it is up to the lender to judge whether or not its obligation to make an advance had arisen.

The court noted that when a contract confers on one of the contracting parties’ discretion, the exercise of that discretion is not entirely unconstrained.  The court can only interfere if the discretion has been exercised irrationally, capriciously or arbitrarily.  A decision is not “irrational” merely because it is in a looser sense unreasonable.

The defendant lender had decided not to make an advance in response to the claimant’s request because it was not satisfied with the ATE insurance being offered. It required that the insurer either have a substantial capital base or have reinsurance of its exposure. The claimant considered that having regard to the amount involved, the low degree of risk and the apparent soundness of the ATE insurer, that it was irrational and capricious to require reinsurance. 

The court held, however, that it was precisely this kind of assessment that was properly to be made by the lender and not by the court particularly given that the claimant was insolvent and was branching out in an unfamiliar area of business and was unable to obtain finance from mainstream lenders.

So the lender was entitled to decline to make the first advance when requested to do so.

The court also held that it had been entitled to decline to make the advance on the basis that the solicitor had failed to comply with the conditions precedent. At no time did the defendant give an unequivocal assurance that it would not require delivery of proof of insurance. 

Simon Mckay v Centurion Credit Resources LLC [2011] EWHC 3198

Statistics have revealed that depression affects approximately one in six people (and is more common in women) and it is therefore vital that employers take the necessary action to assist employees who are suffering from stress and depression, and avoid inadvertently breaking the law.

To read the full article, please click here. You may need to register to read the article in full.

If you would like to discuss the issue of depression in the workplace and what your legal rights and/or obligations are, please contact me at rebecca.fox@mablaw.com.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case shows the need for organisations to have clear IT and Internet usage policies. Organisations should also make sure that those policies have been updated since the increased use of business and personal social networking sites.”

In this case, the borrower which was a limited company borrowed money from the Bank of Ireland (“the Bank”) on the security of mortgages over properties and of guarantees given by two directors.  The borrower then defaulted and the Bank took steps to recover possession of the properties.  The Bank’s legal costs came to £123,984, which the Bank paid.  Subsequently the mortgages were transferred to another party and soon afterwards the borrower repaid the sums owed including the legal costs and in that way the borrower had paid the sums demanded including the legal costs. 

The borrower applied for the assessment of the costs under s71 of the Solicitors Act 1974.  S 71 (1) entitles the borrower, although a third party, to obtain an assessment of a bill as if he were the client.  The Court of Appeal held that under s71 the court is only entitled to interfere with the hourly rate agreed between the solicitor and the client to the extent that it could have interfered with it at the behest of the client.  He can eliminate items that are not within the scope of the mortgage and items which are only allowable as between the client and the solicitor on a special arrangement basis under the terms of the Civil Procedure Rules, but generally this is quite limited.

The Court of Appeal, therefore, considered that in a mortgage case an account should be taken of what was due under the mortgage rather than bringing proceedings under s71.  Such proceedings would enable the court to determine the correct issue as between the correct parties and if, appropriate, to order repayment by the Bank to the borrower.  In those proceedings it would be possible to disallow part of an amount claimed on the basis that something was due, but not as much as is claimed – for example by substituting a lower hourly rate.

Instead of seeking an assessment under s71, therefore, in almost all cases a borrower or other party seeking to challenge the costs claimed should bring a claim for an account of the sums due under the mortgage.

In the light of this judgment, it may be anticipated that third party assessments will become rare where the real issue is as to the reasonableness of legal costs.  It seemed to the court that the appropriate procedure for a dispute of this kind is a subject worthy of the attention of the Civil Procedure Rules Committee.

Tim Martin Interiors Ltd v Akin Gump LLP [2011] EWCA Civ 1574

The ICO sets out a plan of 5 Es: eduate, empower, engage, enable and enforce. It is not purely about enforcement as it wants to educate and help too, but that is clearly the end result if there are problems. It wants to target its limited resources to the areas in which it perceives are the greatest need to act to protect individuals. It will consider the volume, nature and sensitivity of the data and the number of people affected. Ultimately, it will consider what is in the public interest.

The ICO wants to ensure that its activities are conducted transparently, proportionately, consistently, targeted and in an accountable way. It also wants to see a high proportion of the public aware of their privacy rights and how to enforce them.

The Information Rights Strategy can be found here: http://www.ico.gov.uk/about_us/plans_and_priorities/information_rights_strategy.aspx.

The High Court had initially ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

The European Court of Justice’s advisor has now given his opinion. Advocate General Bot has followed the High Court’s ruling. He said that the language and functionalities of a computer program were not eligible for copyright protection. They amounted to ideas without concrete expression. Functionality was the set of possibilities offered by a computer system. It is the service that the user expects from it. For example, in a program for airline tickets, this included finding the flight, checking availability, booking a seat, registering details, paying and editing. The list of possible functionalities was finite. However, the means of achieving the concrete expression of those functionalities is eligible for protection.

We will now await several months for the decision of the European Court of Justice. The Advocate General’s opinion is not binding, but is usually followed by the court.

The note provides an overview of what Build Now, Pay Later is, the advantages it brings to housebuilders, and the terms which government departments will ask developers to bid on when they are disposing of their land.

The Build Now, Pay Later scheme is intended to make it easier for developers to manage their development cash flow, as they do not have to pay upfront for the government-owned land. Housebuilders will pay for the land after they have started work on the new homes, meaning that they can start building immediately.

The scheme has been launched in conjunction with the Government’s decision to release public sector land for housebuilding, with the aim of building 100,000 new homes by 2015. The need for new homes is urgent, as recent figures have revealed that housebuilding is now at its lowest levels since the 1920s (click here for more details.)

In its note, the Government has admitted that Build Now, Pay Later is not appropriate for all sites, and will tend to be more beneficial on larger more complicated sites which will require significant capital investment to unlock.

There are two Build Now, Pay Later models: Phased Payments and Risk Sharing.

The Phased Payments model is where the land value or base price is apportioned across a number of phases with specified dates for when payments will be made. The housebuilder bears less initial risk, as payments are linked to completed or sold phases. The timing of payments and percentage of land value paid on completion of each phase can be varied to suit the risk characteristics of the site.

The Risk Sharing model allows housebuilders to share the risk and reward from the movement in house prices and the subsequent revenue generated. However, the risk of fluctuations in development costs will be borne by the housebuilder.

Increasing housebuilding is one of the Government’s key objectives in its Growth Review, and it is also hoped that the Build Now, Pay Later will create and sustain thousands of jobs in the construction sector.

The guidance advocates a cookie audit to identify the cookies used, distinguishing between session, persistent and third party cookies, look at how privacy-intrusive each cookie is and how clear information is provided to users.

The ICO has also given further guidance on obtaining consent. It says that website operators should have minimal use of cookies until users have consented. Implied consent is not a viable option at the moment, but as users become more aware of cookies, that could be used. It also advocates contractual obligations between third parties and website owners governing the collection of consent for the third party cookies.

The ICO’s report and the guidance can be found here:  http://www.ico.gov.uk/news/latest_news/2011/must-try-harder-on-cookies-compliance-says-ico-13122011.aspx.

Viagogo – the website – had objected to the hand over, saying that to do so would be disproportionate and infringe its users’ data protection rights. The Court of Appeal disagreed. The rights had to be balanced and the RFU was entitled to know about who was infringing its contract terms. The Court of Appeal therefore ruled that it was right to grant the RFU a “Norwich Pharmacal Order” against Viagogo to reveal the data. Whether or not the England rugby body used that data to take action against the sellers or the people who had provided the tickets to the sellers was irrelevant to the ruling.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “According to evidence from the BioIndustry Association, the UK share of clinical trials has fallen from 6% to 2% in the last decade. The UK also went from the fourth largest location for clinical trials in 2006 to twelfth just two years later. The UK has a long history of being a global leader in developing new pharmaceutical products. A lot of jobs and expertise have been based here as a result. Anything the Government can do to make drug discovery conditions better so as to reverse the declining trend and make the UK a more enticing place to discover new drugs has to be a good thing.”

The ruling is an important reminder that exit provisions in agreements are not something to worry about later; rather, they are just as important as those provisions of an agreement which are intended to have immediate effect. If exit provisions have not been agreed, the party receiving the services is at serious risk of being without those services for a period of time until another provider is found, with potentially catastrophic impacts on its business. Similarly, the service provider may suddenly be without a revenue stream without any form of transition period to balance the impact.

The ruling also shows the importance of not just having exit provisions within an agreement, but to make sure that those provisions set out the requirement for an exit plan which clearly defines what happens to the services on termination – in an IT contract, for example, this should include the specific hardware and software that is needed, the level of support and maintenance that will be provided, how long the transition services will be provided for and how much those transition services will cost.